Evans

The Department of Motor Vehicles (DMV) and its director, A.A. Pierce, appeal from the trial court’s issuance of a peremptory writ of mandate setting aside DMV’s order revoking the automobile dismantler’s license of James M. Evans, doing business as Rio Linda Auto Wreckers and A to Z Auto Dismantlers, and from the court’s subsequent order awarding attorney fees to Evans pursuant to Code of Civil Procedure section 1028.5 or, alternatively, Government Code section 800. Evans appeals from the trial court’s order denying an award of attorney fees pursuant to the federal Civil Rights Act ( 42 U.S.C. § 1988 ).

The key issues presented in this appeal are (1) whether California’s statutory scheme for serving notice of an accusation and hearing seeking to revoke an automobile dismantler’s license is reasonably calculated to give the licensee notice of the accusation and hearing and, thus, satisfies due process of law, and (2) whether DMV abused its discretion in rejecting Evans’s claim that his default should be set aside on the ground that, although the notice was in fact delivered to his established place of business, he did not receive it.

The trial court concluded that, even…

I dissent for the reason that the majority impose an unfair procedural burden on Evans to raise the issue that he failed to receive actual notice of the hearing at which his license was revoked.

*978 The majority indulge the assumption, with which I agree, that, notwithstanding that the notice by certified mail satisfied the requirements of Government Code section 11505, subdivision (b), in an appropriate case reconsideration may be granted where the respondent fails to receive it.

Government Code section 11521 1 confers discretion on an administrative agency to order reconsideration “on petition of any party.” Neither the section nor any other provision of law prescribes the manner or form of such a petition. Nonetheless, the majority opinion concludes that the form of Evans’s petition was insufficient to raise the claim that reconsideration should be granted because of lack of actual notice of the disciplinary proceedings against him. “Evans merely made a bare, unsworn allegation that he had not received notice of the hearing; he provided no evidence or argument supporting his assertion, nor did he establish that the alleged lack of notice was not due to his avoidance of…

Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Floyd D. Shimomura, Assistant Attorney General,

Linda A. Cabatic, Susan P. Underwood and Geoffrey L. Graybill, Deputy Attorneys General, for Defendants and Appellants.

Daniel Robert Lang, Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf and Ann Perrin Farina for Plaintiff and Respondent.

OPINION

SCOTLAND, J.

The Department of Motor Vehicles (DMV) and its director, A.A. Pierce, appeal from the trial court's issuance of a peremptory writ of mandate setting aside DMV's order revoking the automobile dismantler's license of James M. Evans, doing business as Rio Linda Auto Wreckers and A to Z Auto Dismantlers, and from the court's subsequent order awarding attorney fees to Evans pursuant to Code of Civil Procedure section 1028.5 or, alternatively, Government Code section 800. Evans appeals from the trial court's order denying an award of attorney fees pursuant to the federal Civil Rights Act ( 42 U.S.C. § 1988 ).

The key issues presented in this appeal are (1) whether California's statutory scheme for serving notice of an accusation and hearing seeking to revoke an automobile…